Shisler v. Keavy , 2 Foster 42 ( 1874 )

The opinion of the court was delivered, January 19th 1874, by

Mercur, J.

The parties, by writing filed March 7th 1871, agreed to refer all matters in controversy, in a pending suit, to three persons named, under the Act of 16th June 1836. They further agreed, that the submission should be made a rule of court, and that each party should be bound and concluded by the award of the referees, or of a majority of them, “ without the right to appeal, file exception, or take out writ of error.” It is claimed, however, that the award is invalid by reason of the omission to file the affidavit directed by the second section of said act. It is true, it was said in Wall’s Administrators v. Fife, 1 Wright 394, that the agreement and submission are not entitled as a matter of right to be entered on the docket by the prothonotary without the affidavit. But neither this section nor the decision referred to applies to a submission and rule in a pending suit. If either did so apply, the filing of the affidavit might be waived by the parties. Their subsequent written agreement, filed June 20th 1871, whereby they agreed that another person named be substituted as an arbitrator in the place of one of the former, who had declined to serve, was such a waiver that the absence of an affidavit cannot now be successfully interposed. Besides, when the submission is in a pending action it is unnecessary expressly to stipulate that it be made a rule of court: McAdams’ Executors v. Stillwell, 1 Harris 90 ; Buckman v. Davis, 4 Casey 211; Quay v. Westcott, 10 P. F. Smith 163; Summy v. Hiestand, 15 P. F. Smith 309. Where there is an agreement to refer in an action pending, consent to make it a rule of court will be implied: Painter v. Kistler, 9 P. F. Smith 331.

The other ground urged against the validity Of the award is the revocation of the submission. The record shows that upon the same day on which the award was made and signed, the plaintiff in error filed a “withdrawal from rule of arbitration.” Which was first in point of time the record does not show. That the withdrawal preceded the making of the award, the plaintiff in error sought to establish extrinsic to the record. It is the province of the court below to take cognisance of and correct. the errors not shown by the record, of the arbitrators, just as it would remedy those committed by a jury, on a motion for a new trial, -and its decisions cannot be reviewed unless there be errors of law apparent upon the record itself: Kline v. Guthart, 2 Penna. R. 495 ; Sands v. Rolshouse, 3 Barr 457; Rogers et al. v. Playford, 2 Jones 181; Buckman v. Davis, 4 Casey 211. The depositions or other evidence are no part of the record, and although they may be-sent up with the record, should not be considered in this court: Browning v. McManus, 1 Whart. 177; Rogers v. Playford, supra; Brown v. School Directors, 6 Harris 78 ; Dodds v. Dodds, 9 Barr 315. As the reasons given by the court for dismissing the exceptions constitute no part of the record, the opinion which was thereupon filed cannot be considered. The parties agreed not “ to appeal, file exception, or take out writ of error.” It was said, in Rogers et al. v. Playford, supra, there is no paramount reason of public policy forbidding an agreement that their decisions should be beyond the reach of further inquiry or revision. Hence it was held if an agreement to submit a case to arbitration provide that the award shall be final and conclusive, and that neither party shall have a right to appeal or file exceptions to it, the parties are concluded by their agreement and have withdrawn from the court its power to rectify a mistake of fact on the part of the referees, on exceptions filed to their award : McCahan v. Reamey, 9 Casey 535, and cases there cited.

While the general power to revoke a submission is well settled, yet after its execution it is beyond the dominion of either party, when the submission has assumed the form of a contract upon a sufficient consideration. Hence, a submission to a final reference in consideration of a discontinuance -of proceedings in chancery for an account, was held to be irrevocable : McGheehan v. Duffield, 5 Barr 500.

The record shows that the hearing before the referees after they had met was twice adjourned upon the. application of the plaintiff in error, before he attempted to revoke the submission. His alleged notice of revocation was given to one only of the referees. It was expressly ruled in Dickerson v. Rorke, 6 Casey 390, that when a submission is in writing, it cannot be revoked, except by a. written instrument given to the arbitrators, or a majority of them.

The court below having' dismissed the exceptions and entered judgment upon the award, we discover no such error as to require us to disturb it; Buckman v. Davis, supra.

Judgment affirmed.